IN RE:
MICAH STORM DULA, Caldwell County
A Juvenile. No. 98 J 71
Lauren Vaughan for Caldwell County Department of Social
Services petitioner appellee.
C. Gary Triggs for respondent appellant.
McCULLOUGH, Judge.
This case concerns the termination of the parental rights of
the biological mother, Mrs. Davida Dula Kaylor (Mrs. Kaylor), to
her son Micah Storm Dula (Storm). The rights of the biological
father, Mr. Brian Gossetts (Mr. Gossetts), have been conclusively
terminated based on adequate findings of neglect pursuant to N.C.
Gen. Stat. § 7B-1111(a)(1) and set out in the adjudication and
disposition orders dated 20 February 2002. He has made no attempt
to appeal. This appeal addresses the termination of Mrs. Kaylor's
rights.
Storm was adjudicated as an abused juvenile on 29 October 1998
within the meaning of N.C. Gen. Stat. § 7A-517(1) (1998 Cum. Supp.)
(repealed by Session Laws 1998-202, s. 5, effective 1 July 1999.
See now § 7B-101(1) (2001)). The reasons enunciated in the JuvenilePetition were that Storm had been taken to the Grace Hospital
Emergency Room and was found to have a broken right femur and
several healing rib fractures. Both injuries to Storm occurred
under the primary care of Mrs. Kaylor, and she has offered no
medically plausible explanation for the injuries. In a disposition
order of 29 October 1998, the court ordered that “[i]n order to
achieve the goal of reunification, the Court shall require
successful completion of the service agreement and intervention
plans established with the parents.” In a subsequent permanency
planning review held on 1 December 1999, Mrs. Kaylor was found to
have substantially complied with these service agreements and
intervention plans: she completed the nurturing classes through the
Caldwell County Department of Social Services (DSS), she attended
therapy sessions, she showed progress on the visits with her child,
she paid child support, and she kept her home in order, allowing
announced and unannounced visits by DSS.
However, her service plan also required that
[s]hould Davida [Mrs. Kaylor] be unable to
give an explanation of her son's injuries that
is consistent with the medical findings, she
should be able to understand how such injuries
could occur and ways to insure that such
injuries might not occur again.
Mrs. Kaylor never provided any information regarding how and under
what circumstances the injuries to the child occurred, and she
maintains her denial of involvement or knowledge. On these
grounds, the court issued a 10 January 2000 order, requiring DSS to
do the following: (1) cease parent-child reunification efforts, (2)plan for relative placement or adoption, and (3) provide limited
visitation to Mrs. Kaylor. Mrs. Kaylor appealed the order on the
issues of ceasing reunification efforts and the plan for adoption.
On 20 March 2000, DSS filed a separate petition for the termination
of parental rights of Mrs. Kaylor and Mr. Gossetts, which was later
amended on 23 March 2000.
On 17 April 2001, this Court issued an opinion remanding in
part and affirming in part the 10 January 2000 order. In Re Dula,
143 N.C. App. 16, 544 S.E.2d 591, aff'd, 354 N.C. 356, 554 S.E.2d
336 (2001). The Supreme Court denied a Petition for Writ of
Supersedeas filed by Mrs. Kaylor thereafter affirming our decision.
In Re Dula, 354 N.C. 356, 554 S.E.2d 336 (2001). The case returns
to this Court on appeal from the 20 February 2002 adjudication and
disposition orders terminating the parental rights of Mrs. Kaylor
and Mr. Gossetts.
Before reaching the relevant issues of this appeal, we first
clarify what we held in our 17 April 2001 opinion. There the Court
determined that the trial court's findings in the orders entered on
and prior to 10 January 2000, specifically that DSS had “made
reasonable efforts to prevent or eliminate the need for placement
of the juvenile” outside the home, were affirmed. Id.; see N.C.
Gen. Stat. § 7B-507(a)(2). Based on this determination, we held
(1) the trial court was under the statutory obligation of N.C. Gen.
Stat. § 7B-907(d) at the 1 December 1999 permanency planning
hearing to either seek termination of parental rights or make
alternative requisite findings required by statute. In Re Dula, 143N.C. App. at 18, 544 S.E.2d at 593. We remanded on these grounds.
We also held (2) that the trial court was correct in its 10 January
2000 order ceasing reunification efforts, and overruled the
argument that parent-child unification should still be sought. Id.
at 18, 544 S.E.2d at 594. While there was a dissent on this second
holding, the Supreme Court in their review denied the appellant's
writ and therefore the issue is final. DSS was thereafter no
longer required to make “reasonable efforts” for parent-child
reunification.
In reviewing the briefs, transcript, and record considered in
reaching this court's 17 April 2001 decision, we find there are two
issues in that appeal which either encompass or render moot each of
Mrs. Kaylor's assignments of error. These issues are as follows:
(1) did the trial court, on remand from the Court of Appeals,
follow this Court's order; and (2) was there clear, cogent, and
convincing evidence, as defined by North Carolina case law, for the
trial court to find grounds to terminate the parental rights of
Mrs. Kaylor; and further, that it was in the best interest of Storm
to do so.
We hold as a matter of law that the trial court, in its 20
February 2002 order terminating the parental rights of Mrs. Kaylor
and Mr. Gossetts, did so without error.
6. The juvenile was adjudicated to be an
abused juvenile on or about October 7,
1998.
7. The Court has taken judicial notice of
the findings of fact and conclusions of
law found in its prior orders entered in
Caldwell County File No. 98 J 71 and
hereby incorporates said prior orders as
if fully set forth within this order.
8. The Court has heard overwhelming clear,
cogent, and convincing evidence that the
Respondent mother abused the juvenile and
finds it a fact that she did abuse the
juvenile.
9. On or about April 25, 1998, the juvenile
presented to Valdese Hospital with a
possible viral infection. Chest x-rays
were taken to rule out pneumonia. The
juvenile was discharged that evening to
the mother and her live-in boyfriend,
James Kaylor.
10. On or about April 26, 1998, the juvenile
presented to Grace Hospital with a
swollen right leg. An x-ray examination
of the right leg indicated a fracture to
the right femur. Re-examination of the
chest x-ray taken on or about April 25,
1998, indicated healing rib fractures
which appeared to be older than the femur
fracture.
11. As to the femur fracture, the Court finds
that it was a serious physical injury
inflicted by other than accidental means.
The Court finds, based upon the evidence
and testimony presented, that the
Respondent mother inflicted said injury.
12. As to the rib fractures, the Court finds
that they are serious physical injuries
inflicted by other than accidental means.
The Court finds that at the time those
injuries were inflicted upon the
juvenile, the Respondent mother was the
primary caretaker of the juvenile.
13. The Court finds that there was
overwhelming clear, cogent and convincing
evidence that the mother did in fact
inflict the serious physical injury byother than accidental means upon the
juvenile.
14. During the pendency of the juvenile
proceeding which began on or about May 1,
1998, the mother never admitted that she
inflicted serious physical injury by
other than accidental means upon the
juvenile. There is a probability of
repetition of abuse if the juvenile were
to return to the respondent mother.
15. The Court specifically finds that Pam
Trivette, maternal aunt, did not cause
the femur fracture.
16. The Respondent mother failed to provide a
reasonable explanation for the juvenile's
injuries although she did attempt to
blame the maternal aunt some three (3)
months after the injuries were
discovered. Based on the evidence
presented, the aunt, Pam Trivette, could
not have caused the femur fracture as she
did not have contact with the juvenile
between the two above-mentioned
hospitalizations and the event which
caused the femur fracture occurred
subsequent to the hospitalization at
Valdese and prior to the hospitalization
at Grace.
Upon our review of the evidence before the trial court when it made
the above findings, we hold such evidence was clear, cogent, and
convincing proof of circumstances both before adjudication of abuse
and in light of any changed circumstances, to support termination
on the grounds of abuse. Furthermore, we believe the child's best
interest will be best protected by termination of parental rights
on these grounds.
(a) Evidence of Abuse prior to its Adjudication
The findings of fact numbered (8) through thirteen (13),
fifteen (15), and sixteen (16) depict the court's findings as tothe circumstances during the approximately 24-hour period before
the child's injuries were initially discovered. The findings
depict the severity of the injuries, that their cause was not
accidental, and that the mother was in fact the cause.
Evidence before the trial court in making these findings of
fact was as follows: Doctors, qualified as expert witnesses,
testified that Storm suffered rib fractures to the 3rd, 4th, 5th,
and 6th ribs and the posterior right 6th and 7th ribs, as well as
a spiral fracture to the mid-shaft of the right femur. Testimony
showed that these rib fractures were rare in infants, and that if
they are caused by accidental means, it is a result of a “fairly
severe accident, such as the child being thrown around in an
automobile accident, thrown out of a car.” Otherwise, the most
common cause of such fractures to a child is abuse, usually from
squeezing a child's chest. Furthermore, medical expert testimony
showed substantial force was required to cause the type of femur
fracture suffered by Storm, like that of a car accident or falling
down stairs. Otherwise, the cause was likely an abusive jerking or
twisting of the child.
Testimony and the record showed that over the course of the
investigation and during the years Storm was in foster care, Mrs.
Kaylor provided different and insufficient explanations for these
injuries. At the 29 November 2000 hearing, her explanations for
the rib injuries were that Storm may have rolled over on a pacifier
or been bumped into, and that the leg fracture may have been caused
by an X-ray technician who handled the child at the hospital on thenight of 25 April 1998. Months after discovery of the injuries,
Mrs. Kaylor also accused her aunt of causing the femur fracture.
Testimony and the record showed that at the time of the rib
injuries to Storm, Mrs. Kaylor was the primary caretaker.
Furthermore, testimony of medical experts and records indicate that
when Storm was brought to Valdese Hospital on 25 April 1998 for a
viral infection, there was no fracture to Storm's femur, otherwise
some physical evidence would have been manifest to the attending
doctors. At Grace Emergency Room, on 26 April 1998, an x-ray
report showed Storm had suffered the femur fracture. A reviewing
expert stated that a fracture such as this would typically result
in irritability of the child within a few hours, and that swelling
to the area of the fracture would occur within six to eight hours.
Testimony and the record indicated that Storm was in Mrs. Kaylor's
sole custody at all times between the two hospital visits.
Particularly, the testimony of her now-husband Jamie Kaylor (Mr.
Kaylor) indicated that Mrs. Kaylor never mentioned any swelling to
Mr. Kaylor, and that Storm was sleeping soundly from the time he
was put to bed at 11:00 o'clock p.m. the night before, until the
morning of 26 April 1998 when he left the house around 8:30 a.m.
Mr. Kaylor testified that when he returned, at 11:00 o'clock a.m.
that morning, he immediately went to where Mrs. Kaylor had Storm on
the bed. He believed she was getting Storm ready for a bath or a
diaper change, and he immediately noticed Storm's leg was swollen.
He testified “it was bad.” He first commented that it lookedswollen and she responded, “Yeah, it is swollen”. She then “[f]lew
all to pieces.”
We believe that the evidence, as set forth in the transcript
and the record upon which the trial court made its findings of fact
and in turn conclusions of law, is clear, cogent, and convincing.
The injuries to Storm were so severe and obvious that their cause
was clearly from at least two separate, traumatic events. Because
these severe injuries were suffered while Mrs. Kaylor was the
primary caretaker, no adequate medical explanation or evidence has
been provided that would suggest anything but abuse. Yet, no
adequate medical explanation or evidence has been provided that
would suggest anything but abuse, as these severe injuries were
suffered while Mrs. Kaylor was the primary caretaker.
(b) Evidence of Changed Circumstances
The findings of fact as to whether circumstances had so
changed that there was no probability of future abuse must be
current as to the time of the termination proceeding. See Ballard,
311 N.C. at 715, 319 S.E.2d at 232. If there is no evidence of
abuse at that time, parental rights may nonetheless be terminated
if there is a showing of a past adjudication of abuse and the trial
court finds by clear and convincing evidence a probability of
repetition of abuse if the juvenile were returned to the parent.
See In re Reyes, 136 N.C. App. 812, 815, 526 S.E.2d 499, 501
(2000).
The trial court found that upon reviewing the evidence of
changed circumstances at the time of the 11 July 2002 terminationproceeding, clear, cogent, and convincing evidence still suggested
a probability of repetition of abuse. This was the court's finding
of fact number 14. Mrs. Kaylor has taken no exception to this
finding. Assuming arguendo that she had, we here discuss this
issue.
The trial court found that because Mrs. Kaylor has continued
to deny that she inflicted the serious physical injuries upon Storm
by other than accidental means, there is a probability of
repetition of abuse if Storm were returned to his mother. This
finding was based both upon the 11 July 2002 termination hearing,
and the judicial notice of the entire Caldwell County file
concerning Storm's abuse, specifically all its findings of fact and
conclusions of law. We hold that the trial court's finding of the
probability of repetitious abuse is supported by clear, cogent, and
convincing evidence.
In the record before us on this appeal, we have reviewed much
of which the trial court took judicial notice. Specifically, we
note that the record shows Mrs. Kaylor has completed nurturing and
parenting classes, been to several monthly counseling sessions, has
had monthly supervised visitation with Storm at DSS, has developed
more maternal instincts with Storm since he came into care, has
maintained employment and housing, and is paying child support.
However, despite these improvements, the record and testimony
provide two sets of severe injuries to an infant for which there is
no explanation. In the findings of fact of the subsequentpermanency planning juvenile review of 10 January 2000, the court
stated:
The Court finds as a fact, based upon the
history of this case and the presentations
made here in Court that has proffered, that
she is still willing to provide the Court with
dishonest information about what occurred.
She has not accepted any responsibility
whatsoever for the injuries to this child. To
return the child to her would be an extremely
dangerous action under these circumstances.
The trial court believed, and we agree, that without any adequate
explanation or any willingness by Mrs. Kaylor to take
responsibility for these injuries, DSS could not provide adequate
treatment for Mrs. Kaylor through necessary steps to determine why
these injuries occurred and to find ways to prevent them in the
future. A particular fear of Storm's Guardian Ad Litem, and also in
the Court Review dated 5 September 2001, was the concern regarding
Mrs. Kaylor's recurring “explosive outbursts.”
In light of Mrs. Kaylor's initial abuse of Storm, and her
failure to take responsibility or provide a reasonable explanation
for Storm's injuries, we believe there is sufficient evidence to
hold that circumstances have not significantly changed from when
the underlying abuse occurred. Based on the record and transcripts,
there is clear, cogent, and convincing evidence of a probable
threat of future abuse to Storm.
The evidence before the trial court was clear, cogent, and
convincing to support the findings of fact of the abuse of Storm,
and in turn support the conclusions of law based on those findings.
Therefore, we overrule all assignments of error as to the trialcourt's findings of fact and conclusions of law as to the 20
February 2002 adjudication order.
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